ACCA and military judge partiality

On 28 July 2010, ACCA issued a memorandum opinion and decision for the government appeal in United States v. Kirk, ARMY MISC 20100443 (A. Ct. Crim. App. 28 July 2010).

At trial the accused blew providency on an AWOL plea.  The prosecution decided they wanted to go forward on the desertion.  As part of the case the prosecution wanted to use unwarned statements made to the First Sergeant.  The military judge said the statements were coerced, etc., and excluded them.  The prosecution appealed.  Of course the ACCA ruled in favor of the government that being dragged to the First Sergeant’s office, locked up, and asked a bunch of questions, was not an interrogation and any statements were voluntary.  Cases cited are United States v. Duga, 10 M.J. 206 (C.M.A. 1981); United States v. Loukas, 29 M.J. 385 (C.M.A. 1990).  Basically it is in the mind of the questioner, not the person being questioned.

Here is the noteworthy piece.

While not raised by the parties, there is a final matter which we believe merits comment. That is, having received notice of the government’s intent to appeal, it is patent the military judge was attempting to discourage the government from pursuing that appeal, and that ultimately he would not consider evidence he determined should be suppressed, even if the government prevailed.

We are dismayed by the following military judge’s record comments: “I do not expect to get overturned on this issue” and

    if this case does come, you know, back three or four months from now I will be the military judge in the case . . . that is going to hear the facts in the future including the [first sergeant]’s testimony if they believe the statements should be admissible. But if you want to appeal you are welcome to. Is that your final decision, Government? I just want to make sure.

These gratuitous comments certainly call into question at least the perception of the fairness and impartiality of the military judge with regard to the parties, here specifically the government.